SC to reconsider constitutional validity of Section 377 which criminalises homosexuality

NEW DELHI: The Supreme Court on Monday said that it will reconsider and examine the Constitutional validity of section 377 which criminalises homosexuality. The apex court has referred the plea seeking decriminalisation of sex between two consenting adults to a larger bench. 

Chief Justice Dipak Misra, Justices AM Khanwilkar, and DY Chandrachud stated that the issue arising out of Section 377 of the Indian Penal Code (IPC) needs to be debated upon by a larger bench.

The court has also issued a notice to the Central government seeking its response on a writ petition filed by five members of the LGBT community, who stated that they live in fear of police because of their natural sexual preferences.

The bench was hearing a plea filed by Navtej Singh Johar seeking to declare Section 377 as unconstitutional. Referring to a recent nine-judge bench judgement in the privacy matter to highlight that right to choose a sexual partner is a fundamental right, Johar's counsel emphasised that "you can't put in jail two adults who are involved in consenting unnatural sex."

In 2013, a two-judge bench of the SC had ruled that under Section 377 of the Indian Penal Code, homosexuality will continue to be treated as an offence irrespective of their age and consent. The court had then out the ball in parliament's court, stating that the government was free to annul the law through a legislation. 

Defending its order, the court had then said that "a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377."

Section 377 of the IPC refers to 'unnatural offences' and says that "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to pay a fine."